South Sudan: Calls to end the death penalty, improve prison conditions

Integrated Regional Information Networks (IRIN), South Sudan: Calls to end the death penalty, improve prison conditions, 5 November 2012, available at: http://www.refworld.org/docid/5098e5402.html [accessed 3 August 2015]

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Rights groups are calling for an end to the death penalty in South Sudan and for improvements to the squalid prison conditions where people languish for years, often without due process.

A statement on 5 November and an accompanying letter to South Sudan's government, signed by Amnesty International (AI), Human Rights Watch (HRW) and local church and civil society groups, has called for a moratorium on executions, especially as "South Sudan is currently not able to fully guarantee the minimum safeguards... on the use of the death penalty".

The minimum standards for the use of the death penalty, according to the statement, are "adherence to fair trial standards, including the presumption of innocence, the right to adequate legal assistance at all stages of the proceedings, and the right of convicted persons to appeal to a higher tribunal".

Capital punishment may only be imposed "when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts".

South Sudan, which gained independence in July 2011 after decades of civil war with Sudan, has no legal aid for accused parties; police, drawn from the lowest ranks of a former rebel army, are undertrained; and judges are in short supply and often lacking experience, or have spent years working in Khartoum's Islamized legal system. According to a June HRW report, the coexistence of customary and formal courts under South Sudan's legal system "presents concerns relating to the guarantee of due process rights".

Due process

"President Salva Kiir Mayardit should immediately declare an official moratorium on executions, and the government should urgently address the continuing shortcomings in the country's administration of justice," said AI's Africa director Audrey Gaughran.

At Juba Central Prison, 19-year-old Franco Lokang Ohure is the youngest person on death row, a sprawling alley where around 100 men are packed into a line of cells. He has been in jail since December 2010, when he was sentenced to hang for killing an armed cattle raider while on duty as a night watchman.

"I was working at night as the [village] policeman. The robbers came, and I stopped them with my gun," he told IRIN, adding that he had acted in self-defence. "They shot three bullets my way. It was a mistake because I killed [someone], but they were fighting me."

Fellow inmate Odyee Joseph Kasimiro, 30, knows Ohure's case well; he was the police officer that filed the report and saw the flaws first-hand. "There were some people that were sent to prison rightly and some not rightly," he said. "They don't really consider manslaughter, and they just take the position of the complainer."

At the South Sudan Law Society (SSLS), David Deng says that without lawyers, no one knows whether innocent people are being sent to the gallows.

"Perhaps the killing was unintentional, or perhaps it was in the heat of passion. As a trained lawyer, you're able to make different arguments according to what the legal rules are, but in these cases without access to legal representation, people simply aren't able to do that," he said.

"Depriving someone of the right to life is an ultimate and irreversible punishment," said says fellow SSLS researcher Dong Samuel. "Without even the most basic legal protections in place, the risk of arbitrariness and error is too high."

No transparency

Details on how and when the death penalty is used are shrouded in secrecy. The rights groups claim that on 28 August, two men were hanged in Juba prison, and that more than 200 prisoners are awaiting execution, shackled and crowded into cramped and dirty cells, few of them with adequate legal counsel.

Jehanne Henry, an HRW Africa researcher and South Sudan specialist, says records on the death penalty are absent or hidden: "Very clear records of how many people are on death row, how many have been subjected to the death penalty or sentenced - as far as we know South Sudan is not keeping these records... if there are [records], they are not available to people like us who ask."

Talar Deng, legal adviser to President Salva Kiir - who signs the execution orders - could not say when the last hanging was, when a presidential pardon was last used or whether the government has tabled a discussion on the death penalty.

"With these kinds of offences - people killing with impunity, culpable homicide, killing an innocent person - one is divided [between] saving the life of the accused and also dispensing justice to the victim," he added. "Do you side with the criminal that deliberately takes out his gun and shoots someone? These are very difficult questions."

He acknowledged that the justice system had a number of problems, including prison overcrowding; people on remand without charge; flaws in the legal system; lack of legal aid; and the lottery of customary versus court law in which people are tried.

Questions about sentencing to death people who without a chance to defend themselves were met by reassurances that appeals are handled by top professionals in the Supreme Court.

In the capital's run-down prison, which was built for 500 but holds over 1,200, no one has heard of a successful appeal against the death penalty.

Joseph Luga Kamoka, 55, who admits to killing his wife's lover in 2006, says he enjoyed a fleeting triumph when the Supreme Court deemed him "not fit to be killed".

Kamoka was initially permitted to use customary law to pay for his crime, in cows, but the family refused to accept payment, and he was put back on death row in 2010 with no money for a lawyer.

"So many people here do not have lawyers. You see, we come from war, and our families are poor," he said.

On remand for years

Meanwhile, hundreds of prisoners are desperate to get to court to be tried after being held for long periods on remand, sometimes with allegedly flimsy evidence.

Small business owner George Haajer, 32, from Liberia, says that he has been in prison since July 2011 and has no idea why. He has been unable to contact his wife, whom he hasn't seen since he was grabbed on the street.

"The judge only told me I had to be in here for two years - I have no idea why... The guy that brought me here was a military guy," he said.

He had a trial, but without an interpreter he didn't understand the charges, which were announced in Arabic.

"They told me that I had to be here for two years or pay 8000 SSP [about US$2,670] to get out... I paid it, but the courts say they did not get it, and I'm still here," he added.

In the youth section, 11-year-old James Kenyi Wani admits to stealing a motorbike but has not been given a court date or a lawyer. "I've been now three months in this place, and I don't know what will happen. I just want to go to school."

Like other remand cases, he has to sleep on the floor while the convicted get the luxury of a single bunk. "The sleeping conditions are not good. Sometimes there is no water, and food is irregular," he said.

Funding shortage

The government claims it has no money for the mentally ill who are often imprisoned for want of a sanatorium. "Those of the mentally ill in the prison, they need drugs," prison official Andrew Monydeeng said of the 50 or so patients at Juba prison.

"The judiciary system is in a desperate need of state funds. If we want to see established a judiciary system under the rule of law, this system needs dramatically more attention in terms of state finances," said Klaus Stieglitz, director of German human rights charity Sign of Hope.

Sign of Hope is working to improve human rights in Rumbek Prison, Lakes State, which has "eight local judges for a population of more than 700,000 persons in an area of the size of Denmark". It hopes to help prisoners in the capital, too.

"The budget of the government of South Sudan for 2011, according to the Small Arms Survey, showed personnel costs of 129 million SSP [about $43 million], whereas the operative budget for 38 prisons in South Sudan contained only 5 million SSP [about $1.6 million]," Stieglitz said. This is too small to maintain "the international standard minimum rules for the treatment of prisoners".

Monydeeng says that there are 21,000 people working for the prison service for 6,000 inmates, and only one prison, in Bor, Jonglei State, meets international standards.

With austerity measures implemented following South Sudan's decision at the start of the year to shut down oil production - accounting for 98 percent of its budget - improvements are not planned and money to train an additional 75 judges will have to wait.

"Under the austerity measures, I don't think we will have sufficient funds this financial year," said presidential legal advisor Talar Deng, explaining that in South Sudan "everything is a priority".